Interest of V.L.K.
| Decision Date | 10 June 1999 |
| Parties | (Tex.App.-Fort Worth 1999) IN THE INTEREST OF V.L.K., JR. NO. 2-98-102-CV. |
| Court | Texas Court of Appeals |
FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY.
PANEL A: CAYCE, C.J.; DAY and RICHARDS, JJ.
We withdraw our opinion and judgment of June 3, 1999, and substitute the following in its place.
This is an appeal from a suit modifying the conservatorship of Vincent Lee Kilgore, Jr., a minor. The jury appointed James and Medina Hicks, Vincent's paternal aunt and uncle, as managing conservators and appointed Leigh Ann Kilgore, the child's mother, a possessory conservator. On appeal, Kilgore contends that the trial court erred in instructing the jury that there is no presumption that it is in the best interest of the child for a parent to be appointed as managing conservator if there has previously been an order of custody awarding conservatorship to a third party, and that this error was harmful. We agree that this was reversible error, and reverse and remand for a new trial.1
On September 16, 1994, when Vincent was fourteen months old, Kilgore shot and killed her husband, Vincent Lee Kilgore, Sr., Vincent's father. Kilgore was charged with murder and was released after posting bond. Her bond was later revoked and Kilgore spent February 18, 1995 to March 21, 1995 in jail. During this time, Vincent stayed with Donna and Rick Chabot, Kilgore's sister and brother-in-law. Upon her release, Kilgore reassumed primary care of Vincent. In August 1995, Kilgore returned to jail to await trial, which was originally scheduled in January 1996. At the beginning of that period, Donna made arrangements for Vincent to stay with the Hickses for about six weeks while the Chabot's new home was being completed. During that time, the Chabots discovered that Rick was seriously ill. The Hickses agreed to keep Vincent while the Chabots sought medical treatment for Rick in Denver. Meanwhile, Kilgore's trial was reset for May 1996.
Fearing that the Hickses would try to obtain permanent custody of Vincent, Kilgore signed an agreed decree on January 9, 1996 appointing her mother, Jean Christiansen, as managing conservator of Vincent and designating herself as possessory conservator. Even with this change in conservatorship, however, Vincent remained in the Hickses' care with the apparent consent of Christiansen and Kilgore.2 In April 1996, after the Hickses became aware of the agreed decree, they filed a motion to modify requesting that they be appointed joint managing conservators. Kilgore subsequently filed a cross-petition requesting that the January 1996 decree be modified to appoint her as Vincent's sole managing conservator. Christiansen filed an answer requesting that either Kilgore or Donna Chabot be named sole managing conservator.3
At a pre-trial conference, the Hickses argued that the parental presumption which normally governs in a custody dispute between a parent and a non-parent was inapplicable in this case. This presumption, that it is in the best interest of a child for custody to be awarded to a natural parent, is deeply rooted in Texas law. See Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). However, the Hickses contended that when Kilgore agreed to appoint Christiansen as Vincent's managing conservator, she voluntarily relinquished the right to that presumption and should be treated the same as non-parent. The Hickses also argued that the parental resumption applies only in original custody determinations and not to a modification of conservatorship. Kilgore objected, but the trial court agreed with the Hickses and found that the parental presumption would not apply in this case.
After both parties presented their cases and rested, the Hickses argued at the charge conference that the lack of the parental preference instruction in the court's charge was insufficient to instruct the jury on the law governing this case. To reinforce that the parties were on a level playing field, the Hickses argued, the jury should be instructed that in this case, there is no presumption that a parent should be appointed as managing conservator. Kilgore objected again, and asked for the charge to include an instruction to the jury that it was in the best interest of the child to appoint Kilgore as sole managing conservator unless that appointment would significantly impair Vincent's physical health or emotional development. Alternatively, Kilgore's attorney argued that the trial court should not include the "no presumption" instruction requested by the Hickses because it would move the jury from a neutral position to one disfavoring Kilgore. The trial court overruled Kilgore's motions and included the following instruction in the charge:
The trial court rendered judgment of the jury's answer that the Hickses should be appointed managing conservators.
On appeal, Kilgore contends that the trial court erred in refusing to give an instruction on the parental presumption and further, in affirmatively charging the jury that no parental presumption existed in this case.
We review a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard. See Texas Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). The trial court thus has wide latitude to determine the propriety of explanatory instructions and definitions. See Tex. R. Civ. P. 277; Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). If error is shown, we reverse only if, when viewed in light of the totality of the pleadings, evidence, and charge, the error amounted to such a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause rendition of an improper judgment. See Knighten, 976 S.W.2d at 676; Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986).
Texas recognizes a long-standing presumption that in a custodial dispute between a parent and a non-parent, the child's best interests are served by awarding custody to the parent. See Lewelling, 796 S.W.2d at 166 & n.1 (citing Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963) and Legate v. Legate, 87 Tex. 248, 28 S.W. 281, 282 (1894). This presumption is codified in section 153.151 of the family code, which requires the trial court to appoint a parent as managing conservator of the child unless the court finds "that" appointment...would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. 153.131 (Vernon Supp. 1999). The overriding purpose of the statute is to "require a heightened standard in cases where no parent is to be awarded any type of managing conservatorship...." Brook v. Brook, 881 S.W.2d 297, 300 n.2 (Tex. 1994).
Because this appeal involves a motion to modify conservatorship rather than an original custody proceeding, the Hickses ...
To continue reading
Request your trial
-
In the Interest of V.L.K.
...no presumption instruction. Accordingly, the court of appeals reversed the trial court's judgment and remanded the case for a new trial. 993 S.W.2d 887. In their petition for review to this Court, the Hickses assert that the trial court properly instructed the jury that the parental presump......